Ram Chand vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 439 of Code of Criminal Procedure (in short ‘Cr.PC’), seeking regular bail in case FIR No. 10 of 2019, dated 31.03.2019, registered under Section 20 of Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) in Police Station Patlikuhal, District Kullu, H.P.

Status report stands filed. Record was also made available.

In the status report, details of circumstances in which petitioner is alleged to have been found in possession of 2 kilograms charas, have been narrated, stating therein that during patrolling on 31.03.2019, at about 7.20 a.m., on checking of car HP-02K-1897, being driven by petitioner, a carry bag kept on side of the Engine under Bonnet was recovered which was taken into possession and seized by following prescribed procedure. After sending Rukka to the Police Station, FIR was registered and investigation was carried on. After that, during investigation, on finding sufficient material, petitioner was arrested at 3.30 p.m. Since then petitioner, after remaining in police custody, is in judicial custody. As per status report, petitioner disclosed that he had purchased the charas from some Nepali, who was known to him by face but without knowledge of his name and address. As per State Forensic Science Laboratory (SFSL) report, contraband has been confirmed as charas.

It has also been stated in the status report that challan was presented in the Court on 30.05.2019. In the trial out of total 12 witnesses 3 witnesses have been examined and next date for recording evidence of two more witnesses has been fixed as 09.03.2023.

Learned counsel for the petitioner has submitted that petitioner has spent about 3 years 9 months of his life in the Jail and despite undertrial prisoner’s case, trial is going with snail’s pace and only 3 witnesses have been examined till date and there is no likelihood of completion of trial in near future and, therefore, keeping in view pace of trial, it has been contended that petitioner is entitled for bail.

Learned counsel for the petitioners, to substantiate plea for bail, has referred pronouncement of the order dated 1.8.2022 passed by the Supreme Court in a petition for Special Leave to Appeal (Crl.) No. 3961 of 2022, titled as Abdul Majeed Lone Vs. Union of Territory of Jammu and Kashmir, wherein petitioner facing trial for having been found in possession of 1100 grams commercial quantity of charas was enlarged on bail for suffering incarceration for over 2 years and 5, months observing that there was no likelihood of completion of trial in near future; and order dated 12.10.2020, passed by Three Judges’ Bench of the Supreme Court, in Criminal Appeal No.668 of 2020, titled as Amit Singh Moni vs. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail for having been in detention of 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February 2020 and, thereafter, there was no further progress in the trial.

Learned counsel for the petitioners has referred pronouncements the Supreme Court in Nitish Adhikary @ Bapan v. The state of West Bengal, Special Leave to Appeal (Crl.) No.5769 of 2022, decided on 1.8.2022, whereby the accused under Sections 21(c) and 37 of NDPS Act was ordered to be enlarged on bail after detention of 1 year and 7 months, observing that the trial was at a preliminary stage.

Learned counsel for the petitioners has placed reliance on order dated 7.2.2020 passed by the Supreme Court in Criminal Appeal No. 245 of 2020, titled as Chitta Biswas Alias Subhas Vs. The State of West Bengal, whereby accused having found in possession of Codeine mixture above commercial quantity, was enlarged on bail after 1 year 7 months, at the stage of trial when out of 10 witnesses, 4 witnesses have been examined in the trial.

Reliance has also been placed on order dated 10. 11.2021, passed by the Supreme Court in Special Leave to Appeal (Criminal) No. 5187 of 2021, titled as Kulwant Singh v. The State of Punjab, whereby accused after detention of more than 2 years, was enlarged on bail despite the fact that recovered contraband was of commercial quantity, for prayer to grant of bail was on the ground of advanced age of petitioner, period of custody undergone by him and the fact that trial would take time to conclude.

Learned counsel for the petitioners has also placed reliance upon order dated 7.12.2021, passed by the Supreme Court in Criminal Appeal No. 1570 of 2021, titled as Mahmod Kurdeya Vs. Narcotics Control Bureau, whereby petitioner apprehended with thousands of tablets of Tramadol X-225, was enlarged on bail. In this case, quantity of drug recovered was more than 50 Kilograms. However, in this case bail was granted by taking into consideration the fact that charge-sheet was field on 23.9.2018 and thereafter even charges had not been framed nor trial had commenced till grant of bail to the petitioner, whereas manufacturer who sold the drug to the accused had been granted bail.

Learned counsel for the petitioners has also placed reliance on order dated 22.8.2022 passed by the Supreme Court in Special Leave to Appeal (Crl.) No. 5530 of 2022 titled as Mohammad Salman Hanif Shaikh Vs. The State of Gujarat, whereby Supreme Court has enlarged the petitioner therein on bail only on the ground that he had spend about two years in custody and conclusion of trial would have taken sometime.

Reliance has also been placed on order dated 5.8.2022 passed in Criminal Appeal No. 1169 of 2022, titled as Gopal Krishan Patra alias Gopalrusma Vs. Union of India, whereby the Supreme Court has enlarged the petitioner on bail, considering the custody of 1 year 7 months undergone by him, in a case involving offence punishable under Sections 8, 20, 27(a), 28 and 29 of NDPS Act.

Learned counsel for the petitioners has also referred order dated 28th July, 2022, passed by Co-ordinate Bench of this Court, in Cr.M.P. (M) No. 1255 of 2022 titled as Puran Chand Vs. State of H.P., wherein a person, arrested for having possession of 1.996 Kilograms of charas, was enlarged on bail for length of custody of more than 2 years 9 months.

Learned counsel for the petitioners has also placed reliance upon order dated 4.11.2022 passed by Co-ordinate Bench of this Court in Cr.M.P. (M) No. 2273 of 2022, titled Madan Lal Vs. State of H.P., wherein accused arrested on 27.12.2019, for having found in possession of 1.695 Kilograms of charas, was enlarged on bail for non completion of trial as accused had suffered detention of 2 years 10 months.

Learned Additional Advocate General referring order passed by the Supreme Court, dated 19.7.2022 in Narcotics Control Bureau Vs. Mohit Aggarwal, 2022 SCC Online SC 891: AIR 2022 SC 3444, has contended that period of detention cannot be a ground for enlarging the petitioners on bail.

Learned counsel appearing for the petitioner submit that in Mohit Aggarwal’s case huge quantity of 20 Kilograms of Tramadol, against minimum commercial quantity of 250 grams, was recovered, whereas in present case recovered quantity is little more than commercial quantity. It has been further contended that the Supreme Court in order dated 11.7.2022 in case titled as Satinder Kumar Antil Vs. Bureau of Investigation, (2022) 10 SCC 51, has observed that period of detention is also a relevant factor for considering the bail application alongwith other factors.

Learned Additional Advocate General has submitted that petitioner has been found involved in commission of heinous crime of such a nature which is not only ruining the individuals, but also damaging the families, society and Nation and, therefore, petitioner is not entitled for bail.

Taking into consideration the entire facts and circumstances, but, without commenting on merits thereon and taking into account factors and parameters, as propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case at this stage.

Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail, subject to his furnishing personal bond in the sum of `2,00,000/- with one surety in the like amount to the satisfaction of the trial Court/Special Judge, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure the presence of petitioner/accused at the time of trial:-

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

Petition is disposed of in aforesaid terms.

Copy dasti.

Petitioner is permitted to produce/use copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the trial Court/Special Judge, and the said Court shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.